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When American Airlines and passenger Michael Reynolds settled a claim in 2002 that the carrier was liable for a blood clot he developed en route from New York to Paris, his condition, deep vein thrombosis, seemed poised to become a lucrative new area of litigation. It was seen, an airline defense attorney said this week, as “the asbestos of the air.” But despite scores of almost identical filings, there have been no settlements since then. And two appellate court decisions this summer — including one earlier this month from the Ninth Circuit U.S. Court of Appeals — cast doubt about the legal viability of a claim whose merits will be decided in San Francisco courts. The claims allege that airlines have a duty to warn passengers of the risk of developing clots from long periods of inactivity. But airline attorneys and Reynolds’ lawyer, Michael Danko of O’Reilly, Collins & Danko in San Mateo, say appellate decisions in California and Texas have encouraged airlines to defend DVT cases in court, rather than begin a parade of potentially large settlements. “All of the airlines that we represent have taken the firm position that there is no liability and there are to be no more settlements,” said L.A.-based Roderick Margo of Condon & Forsyth, which defended Air New Zealand in the Ninth Circuit case and represents seven international carriers in DVT cases. No one disputes that being sedentary during a long flight can cause DVT. But the Ninth Circuit said the clot that debilitated Adrienne Rodriguez after a flight from Los Angeles to Auckland, New Zealand, was not caused by an “accident” pursuant to the Warsaw Convention, the 1929 international travel treaty that restricts carriers’ liability to “accidents.” Rodriguez’s attorney, Clay Robbins of L.A.-based Maga�a, Cathcart & McCarthy, has requested a rehearing. But attorneys on both sides say the Sept. 3 ruling in Rodriguez v. Air New Zealand, 04 C.D.O.S. 8183, does not imperil most claims. Since Rodriguez did not provide evidence that the airline failed to warn of DVT risk — she admitted to reading an in-flight magazine’s recommendation that passengers move around — the panel’s ruling was limited to the specific facts of her case, and so didn’t decide if a failure to warn could ever be an “accident.” The San Francisco courtroom of Chief U.S. District Judge Vaughn Walker will be DVT’s proving ground, since a June 4 transfer order directed almost all current and future cases there. Danko alone plans to file nearly 100 claims before Walker, arguing that failure to warn of a known risk is an “accident” under the Warsaw Convention, as it deviates from normal airline procedure. “When a passenger gets on an airplane, he hears warnings,” such as directions for oxygen masks and emergency exits, said Danko. “The passenger, from all this, certainly expects the airline to tell them everything they need to know to stay safe on a flight.” But a July ruling from the Fifth Circuit said the failure to warn of DVT risk doesn’t meet the definition of “accident” as “unexpected or unusual.” Plaintiff attorneys question the decision in Blansett v. Continental Airlines, 03-40545, but defense lawyers say it affirms one of their key arguments: that sitting, not airline procedures, causes clots. Danko says he expects California courts to reject Blansett and follow the lead of a U.S. Supreme Court decision issued in February, Husain v. Olympic Airways, 04 C.D.O.S. 1528, which found inaction could qualify as an “accident” under the Warsaw Convention. In Husain, the court upheld a Ninth Circuit ruling that a flight crew’s refusal to move an asthmatic man away from the smoking section was “unexpected or unusual.” The man subsequently suffered an asthma attack and died. Defense attorneys say while a decision to ignore passenger complaints was “unexpected or unusual,” failure to provide advance notice of DVT risk is not. But Danko argues there is little distinction between a flight crew ignoring individual concerns and an industry refusing to warn of known risks. Walker’s courtroom isn’t the only place where the claims are landing. On Friday, the Australian High Court agreed to hear a DVT appeal expected to determine the fate of 300-plus claims there. Lawyers say it’s too early to say how that might affect cases here. In the meantime, airline attorney Margo said all of his clients now warn passengers of the perils of immobility. Justin Scheck is a San Francisco-based writer.

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